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Monday, December 10, 2018

Not Even the President Can Avoid Copyright Infringement Claims

Singer-songwriter Pharrell Williams has threatened
to sue President Trump over the use of the song “Happy” at political rally,
held just hours after a white nationalist killed 11 people at a Pittsburgh
synagogue. The cease-and-desist letter sent by Pharrell’s lawyer to the
President read in part:

On the day of the mass murder of 11 human beings at
the hands of a deranged ‘nationalist,’ you played his song ‘Happy’ to a crowd
at a political event in Indiana. There was nothing ‘happy’ about the tragedy
inflicted upon our country on Saturday and no permission was granted for your
use of this song for this purpose.

Pharrell Williams is the owner of the copyright in
“Happy,” with the exclusive right to exploit same. Pharrell has not, and will
not, grant you permission to publicly perform or otherwise broadcast or
disseminate any of his music. The use of “Happy” without permission constitutes
copyright infringement in violation of 17 U.S.C. 501.

Pharrell
is not the first singer-songwriter to take issue with a political figure’s use
of a song at a rally. What makes his particular case different though is that
he most likely has a valid claim for copyright infringement.

In most cases, the
artist has no valid claim because political campaigns are often able to procure
blanket licenses from performing rights organizations (“PROs”) such as American
Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc.
(BMI), when rallies are held in public venues. These licenses allow politicians
to play music at events and rallies even over the protest of an artist.

As it turns out,
Pharrell is not represented by either ASCAP or BMI. He is instead represented
by Global Music Rights (GMR), and it is known that neither the venue where
rally was held nor the Trump campaign have a license from GMR. The President’s
use of the song was therefore unauthorized.

If Pharrell sued for
infringement, Trump may try to claim “fair use” of the song but would most likely
be unsuccessful in that attempt. “Fair use” is a copyright principle that
excuses unauthorized uses of a copyrighted work when used for a transformative
purpose such as research, scholarship, parody, criticism, or journalism.

Perhaps the biggest
reason a fair use defense would fail in this case is because the President used
the song at the rally for the purpose of entertainment, which was Pharrell’s
exact purpose for creating the song. There is no evidence of a transformative
use at all; no new meaning or expression was added to the song, nor was any
value added to the original recording. The song was also not used in parody,
nor for the purposes of scholarship, research, or education.

While Pharrell has not
filed suit yet, the cease-and-desist letter may be as far as this case goes. In
any event, politicians perhaps should reach out to artists to ask for
permission to use their music, regardless of whether a license has obtained.
This practice would prevent politicians from being publicly lambasted by angry
artists who do not agree with their views, but let’s not digress.